Post by unlawflcombatnt on Nov 3, 2009 2:29:41 GMT -6
Torture and the Law
by Vienna Colucci
November 2001
"What is torture?
Torture cannot be defined by a list of prohibited practices. Human rights treaties define it in a number of different ways, reflecting the different contexts in which they were drafted and the purposes of each particular treaty.
The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment was adopted by the United Nations General Assembly in 1984 and entered into force on June 26, 1987.
It defines torture as any act by which:
severe pain or suffering, whether physical or mental; is intentionally inflicted on a person; for such purposes as:
obtaining from him/her or a third person information or a confession
punishing him/her for an act s/he or a third person has committed or is suspected of having committed
intimidating or coercing him/her or a third person
or for any reason based on discrimination of any kind;
when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.*
*Amnesty International believes that acts of violence by private individuals constitute torture when they are of the nature and severity envisaged by the concept of torture in international standards and when the state has failed to fulfill its obligation to provide effective protection against such acts of violence.
What is ill treatment?
It is impossible to draw a clear dividing line between ''torture'' and other ''cruel, inhuman or degrading treatment or punishment.? Whether an act of ill treatment constitutes torture depends on a number of factors, including the nature and severity of the abuse. Both torture and ill treatment are prohibited in all circumstances by international law.
In times of international armed conflict, ill treatment (described as "inhuman treatment'' and ''willfully causing great suffering, or serious injury to body or health' in the Geneva Conventions) are prohibited and criminalized as grave breaches of the Geneva Conventions. These grave breaches are also incorporated in the jurisdiction of the Yugoslavia Tribunal and of the International Criminal Court.
Common Article 3 of the Geneva Conventions prohibits ''violence to life and person,'' in particular ''mutilation, cruel treatment and torture'' and also prohibits ''outrages upon personal dignity, in particular humiliating and degrading treatment''. These terms include ''other forms of cruel, inhuman and degrading treatment or punishment." The drafters of common Article 3 avoided a detailed list of prohibited acts in order to ensure that it had the broadest possible reach, leaving no loophole. As the official commentary by the International Committee of the Red Cross explained:
''It is always dangerous to go into too much detail -- especially in this domain. However great the care taken in drawing up a list of all the various forms of infliction, it would never be possible to catch up with the imagination of future torturers who wished to satisfy their bestial instincts; the more specific and complete a list tries to be, the more restrictive it becomes. The form of wording adopted is flexible, and, at the same time, precise.''
Every act of torture is a crime under international law.
If torture is committed in an armed conflict, it constitutes the war crime of torture.
If torture is committed as part of a systematic or a widespread pattern of similar acts, it constitutes the crime against humanity of torture.
The Convention against Torture prohibits torture as an independent crime, as a war crime, and as a crime against humanity, absolutely and in all circumstances.
The Geneva Conventions prohibit the war crime of torture in both international wars and internal conflicts such as civil wars or rebellions.
The Rome Statute of the International Criminal Court prohibits torture when it constitutes genocide, a crime against humanity or a war crime.
Are there exceptions to the prohibition against torture?
No. Article 2(2) of the Convention states that: "No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture."
The prohibition of torture has a special status in international law. It is part of customary international law, which means it is binding on all states, whether or not they have ratified any of the international human rights treaties.
The prohibition on torture is also a ''peremptory norm,'' which means that it cannot be overruled by any other law or by local custom.
May the United States extradite a person to country where s/he might face torture?
No. Article 3.1 of the Convention against Torture states that: "No State Party shall expel, return ("refouler") or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture."
On October 21, 1998, Congress adopted the United States Policy with Respect to the Involuntary Return of Persons in Danger of Subjection to Torture as part of the Foreign Affairs Reform and Restructuring Act. According to Section (a): "t shall be the policy of the United States not to expel, extradite, or otherwise effect the involuntary return of any person to a country in which there are substantial grounds for believing the person would be in danger of being subjected to torture, regardless of whether the person is physically present in the United States."
Has the United States accepted the obligations set forth in the Convention against Torture?
The United States ratified the Convention against Torture in October 1994. The Convention entered into force for the United States on November 20, 1994.
What statements has the United States government made about its compliance with the guidelines set forth by the Convention?
As a party to the Convention, the United States is required to submit periodic reports describing its compliance with the Convention to the Committee against Torture. Following are excerpts from the Initial Report the United States submitted to the Committee against Torture in 1999 (CAT/C/28/Add.5) that pertain to questions such as "Is torture a crime in the US?" and "What remedies are available?" (Read the entire report)
Excerpts from the Report
6. Torture is prohibited by law throughout the United States. It is categorically denounced as a matter of policy and as a tool of state authority. Every act constituting torture under the Convention constitutes a criminal offence under the law of the United States. No official of the Government, federal, state or local, civilian or military, is authorized to commit or to instruct anyone else to commit torture. Nor may any official condone or tolerate torture in any form. No exceptional circumstances may be invoked as a justification of torture. United States law contains no provision permitting otherwise prohibited acts of torture or other cruel, inhuman or degrading treatment or punishment to be employed on grounds of exigent circumstances (for example, during a "state of public emergency") or on orders from a superior officer or public authority, and the protective mechanisms of an independent judiciary are not subject to suspension. The United States is committed to the full and effective implementation of its obligations under the Convention throughout its territory. [p. 5]
11. .... Although there is no federal law criminalizing torture per se, any act falling within the Convention's definition of torture is clearly illegal and prosecutable everywhere in the country, for example as an assault or battery, murder or manslaughter, kidnapping or abduction, false arrest or imprisonment, sexual abuse, or violation of civil rights. [p. 6]
49. Torture has always been proscribed by the Eighth Amendment to the United States Constitution, which prohibits "cruel and unusual punishments." This Amendment is directly applicable to actions of the Federal Government and, through the Fourteenth Amendment, to those of the constituent states.... While the constitutional and statutory law of the individual states in some cases offers more extensive or more specific protections, the protections of the right to life and liberty, personal freedom and physical integrity found in the Fourth, Fifth and Eighth Amendments to the United States Constitution provide a nationwide standard of treatment beneath which no governmental entity may fall. The constitutional nature of this protection means that it applies to the actions of officials throughout the United States at all levels of government; all individuals enjoy protection under the Constitution, regardless of nationality or citizenship. [p. 13]
47. In 1994, Congress enacted a new federal law to implement the requirements of the Convention against Torture relating to acts of torture committed outside United States territory. This law, which is codified at 18 U.S.C. § 2340 et seq., extends United States criminal jurisdiction over any act of (or attempt to commit) torture outside the United States by a United States national or by an alleged offender present in the United States regardless of his or her nationality. The statute adopts the Convention?s definition of torture, consistent with the terms of United States ratification. It permits the criminal prosecution of alleged torturers in federal courts in specified circumstances. [p. 13]
51. Remedies. United States law provides various avenues for seeking redress, including financial compensation in cases of torture and other violations of constitutional and statutory rights relevant to the Convention. Besides the general rights of appeal, these can include any of the following, depending on the circumstances [pp. 14-15]:
Some avenues for seeking redress
Seeking a writ of habeas corpus, which guarantees judicial review of the reasons for and conditions of detention and ensures that a person who believes his or her detention violates constitutionally protected rights has access to an independent and impartial court for a determination of its propriety;
Filing criminal charges, which can lead to investigation and possible prosecution;
Bringing a civil action in federal or state court under the federal civil rights statute, 42 U.S.C. § 1983, directly against state or local officials for money damages or injunctive relief;
Seeking damages for negligence of federal officials and for negligence and intentional torts of federal law enforcement officers under the Federal Tort Claims Act, 22 U.S.C. § 2671 et seq., or of other state and municipal officials under comparable state statutes;
Suing federal officials directly under provisions of the United States Constitution for "constitutional torts," see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and Davis v. Passman, 442 U.S. 228 (1979);
Challenging official action or inaction through judicial procedures in state courts and under state law, based in statutory or constitutional provisions;
Seeking civil damages from participants in conspiracies to deny civil rights under 42 U.S.C. § 1985;
Bringing civil suits for damages based on international legal prohibitions against torture under the Alien Tort Claims Act, and the Torture Victims Protection Act, 28 U.S.C. § 1350, and note;
Pursuing administrative remedies, including proceedings before civilian complaints review boards, for the review of alleged police misconduct;
The Federal Government may institute civil proceedings under the Pattern or Practice of Police Misconduct Provision of the Crime Bill of 1994, 42 U.S.C. § 14141, to eliminate patterns or practices of misconduct by law enforcement agencies and their parent organizations. Similarly, the Federal Government may institute administrative and civil proceedings against law enforcement agencies receiving federal funds who discriminate on the basis of race, sex, national origin, or religion;
Individuals may bring administrative actions and civil suits against law enforcement agencies receiving federal funding that discriminate on the basis of race, sex, national origin, or religion, under the federal civil rights laws. See 42 U.S.C. § 2000d (Title VI) and 42 U.S.C. § 3789d (Safe Streets Act);
In the case of persons in detention, the Federal Government may institute proceedings under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997, to eliminate a pattern or practice of abuse in any state prison, jail or detention facility.
61. Judicial reference to the Convention. The Convention against Torture has been cited and referenced in a number of federal judicial proceedings to date, including, inter alia, the following decisions?. [p. 19]
62. A number of federal courts have also recognized that the right to be free from torture and cruel, inhuman or degrading treatment or punishment is an accepted norm of customary international law.... [p. 19]
63. In many of these cases, United States courts looked to the Convention for guidance in determining whether there exists a customary international legal norm which prohibits torture and cruel, inhuman or degrading treatment or punishment. Although it is not self-executing, the Convention was viewed by these courts as illustrative of the general agreement among states that such practices are unlawful. Thus, the Convention has played a significant role in the development of international human rights law in United States courts. [pp. 19-20]"
www.amnestyusa.org/counter-terror-with-justice/reports-statements-and-issue-briefs/torture-and-the-law/page.do?id=1107981